They Searched My Car - Can They Do That??

By
Donald Kilfin
|March 16, 2015

Over the years, I have represented numerous clients on drug possession
(or drug trafficking) charges, which stemmed from a traffic stop, and
a subsequent search of the vehicle. Invariably, the client wants to know
whether the search was lawful and, if not, what remedies are available.
This post presents an overview of the circumstances under which a law
enforcement officer may lawfully search the interior of a vehicle.

What is a search?

The Fourth Amendment to the United States Constitution protects individuals
from unreasonable searches and seizures. Generally speaking, the Fourth
Amendment only applies to "government actors" (i.e. searches
or seizures performed by police officers or those acting as agents of
the police) and not private organizations or individuals. If, for example,
your step-father finds drugs while going through your car, calls the police,
and hands the contraband over upon their arrival, there is no Fourth Amendment
issue presented.

Whether an action by law enforcement is a "search", and therefore
subject to Fourth Amendment scrutiny, will depend on whether the officer(s)
have infringed upon the premises, property, or information in which a
person has a "reasonable expectation of privacy". In assessing
whether a legitimate expectation of privacy exists, the courts will typically
apply a two prong test. The first prong entails a determination as to
whether the individual, whose person or property was searched, actually
and genuinely expected privacy. This is referred to as the subjective
prong. The second entails a determination as to whether a reasonable person,
under like or similar circumstances, would have expected privacy in the
premises or objects searched. This referred to as the objective prong.
If there is no expectation of privacy, then there is no search. It has
been held, for example, that a person no longer has an expectation of
privacy in the contents of their garbage bags once the bags have been
placed at the curb for routine trash pick-up.

Generally speaking, a person has an expectation of privacy with regard
to the interior of his or her vehicle, including the contents of any containers
found therein and that expectation is objectively reasonable. That being
said, the search of a person's vehicle must be done pursuant to a
valid search warrant, or pursuant to one of the few recognized exceptions
to the warrant requirement.

Search Warrants

A search warrant is an order issued by a "neutral and detached magistrate"
(a fancy legal phrase for a "judge") to conduct a search. Search
warrants may authorize law enforcement to search a home, a storage shed,
an automobile, or even to listen in on phone conversations. A warrant
must be supported by probable cause. This means that the officer seeking
the warrant must have probable cause to believe that the fruits or instrumentalities
of a crime will be located in the area or property to be searched. Mere
suspicion is not sufficient to satisfy the "probable cause"
standard, but absolute certainty is not required either. Probable cause
can be based on actual observations of the officer, on reliable information
provided by sources whose veracity has been verified, or a combination
of the two. The application for a warrant must be sworn to and the warrant
must describe with particularity the persons or property to be searched.

Defects or irregularities in a search warrant, or in its execution may
be a basis to have items obtained pursuant to that warrant suppressed.
When evidence is "suppressed", it cannot be used against the
individual, who was the subject of the search, in a subsequent prosecution.
This is not, however, always the case. There is a "good faith"
exception which, under certain circumstances, will preclude evidence from
being suppressed or excluded. This doctrine typically applies where the
police did not follow proper procedures in obtaining or executing a search
warrant, but were acting in good faith regardless. The "inevitable
discovery" doctrine may also be used, in certain circumstances, to
preclude the suppression of otherwise excludable evidence. This doctrine
applies where it can be shown that the evidence would have been lawfully
obtained regardless of whether there was a warrant and whether proper
protocols were strictly complied with.

Both the United States Supreme Court, and Florida courts, have recognized
that individuals in automobiles have a "reduced expectation pf privacy"
because automobiles are readily mobile. In the time it takes to obtain
a warrant, the person could simply drive away and thereby thwart law enforcement's
efforts to obtain contraband from within it. Also, automobiles typically
don't act as repositories for personal effects in the same way a home
or office does.

The Stop

Before a police officer may search a vehicle, the vehicle must first be
lawfully stopped. In many instances, this will occur pursuant to a traffic
stop. If the officer observes a moving violation, such as running a stop
sign or speeding, he or she may stop the vehicle for the purpose of issuing
a traffic citation. Non-moving violations (i.e. not wearing your seatbelt)
may also justify a traffic stop. You should know that the threshold requirements
for stopping a vehicle are less than what would be required to justify
a stop under other circumstances (i.e. detaining a person on the street);
if the officer believes, based on his or her observation of the driving
pattern, that the driver may be "sick, injured, or experiencing mechanical
difficulty", a stop is authorized (even where no traffic violation
has occurred).

Of course there may be other instances where no affirmative act on part
of law enforcement is required including, for example, where contact is
made with a vehicle that is parked on the street or in a public parking lot.

What follows are the circumstances under which the police may lawfully
search a person's vehicle, the absence of a search warrant, once the
officer has lawfully stopped the vehicle or otherwise come into contact with it.

Consent

The consent exception applies in all search and seizure scenarios, whether
the object of the search is a person, a place or a vehicle. If you give
a police officer permission to search your vehicle, following a traffic
stop, then the officer may lawfully do so. Of course, consent to search
must be freely and voluntarily given; it cannot be the result of coercion.
Often times, the officer will have the vehicle's owner, or person
having custody of it, sign a consent to search form to verify that (1)
permission was given; and (2) it was given freely.

That a person is unaware of their right to refuse to allow the search or
seizure will not otherwise render the search invalid.

Also, a warrantless consent search is not valid if the officer exceeds
the scope of consent. If, for example, you give permission to search the
passenger compartment, but not the trunk, and the officer searches the
trunk, any contraband found in the trunk would be suppressible (assuming
the officer lacked probable cause to search there).

Plain View

If the vehicle is lawfully stopped, a police officer may seize contraband
observed in plain view. Contraband includes, for example, drugs, stolen
property or other evidence of the commission of a crime. The seizure of
these items may result in the arrest of the vehicle's occupant(s)
and may justify a more intensive search of the vehicle.

To be valid, a plain view search requires that (1) the officer be lawfully
present at a place where the contraband can be seen; and (2) the officer
must observe the contraband from a lawful vantage point. The item's
status as contraband must be readily apparent; the general rule is that
the officer cannot move or manipulate items to get a better view.

For example, where an office comes upon a vehicle parked in the street,
shines a flashlight inside, and spots marijuana sitting on top of the
center console, that officer may seize the contraband (this was a case
I had a couple of years back). Because the vehicle is parked in a public
roadway, the officer can lawfully be there. The use of a flashlight to
illuminate the vehicle's interior would not render the "vantage
point" unlawful. Use of ordinary household items such as flashlights
to see what cannot be seen with the naked eye alone will not typically
render the search unreasonable.

Probable Cause

If the officer has probable cause to believe that contraband or other evidence
of a crime may be located in a lawfully stopped vehicle, and there exist
"exigent circumstances" sufficient to justify an immediate search
(without a warrant), the officer may proceed accordingly. Once again,
there is a reduced expectation of privacy with regard to automobiles because
they are readily mobile. It is for that same reason that the circumstances
are usually construed as "exigent".

Similar principles apply where the officer has probable cause to believe
that there is a dangerous weapon inside the vehicle.

You should also be aware that police officers may search a vehicle when
they detect the odor of burnt or fresh marijuana emanating from inside.
If you are going to smoke pot, don't do it in your car folks - it's
just common sense. I cannot tell you how many drug cases I have had involving
the odor of burning marijuana as the basis for the search.

Incident to Arrest

​Florida courts have routinely held that a vehicle may be searched by law
enforcement officers where one of the occupants is lawfully arrested.
No warrant is required here and any contraband seized pursuant to a search
under these circumstances may be used in a subsequent prosecution.

Inventory Searches

​If the driver of a vehicle is arrested, and the vehicle is impounded, the
police may conduct what is called an inventory search. This is different
from a search incident to arrest. In theory, an inventory search is not
conducted for the purpose of ferreting out criminal activity or contraband;
it is administrative in nature and done to account for the owner's
property so that it may be returned to him or her. If contraband is located,
there is no Fourth Amendment issue and the items can be used in a subsequent
prosecution. The "search" is reasonable, even in the absence
of a warrant or probable cause because of its "administrative" purpose.

Standing

​Standing is a concept that must always be examined in these scenarios.
Simply put, a person's right to challenge a search or seizure depends
upon whether that particular person's Fourth Amendment rights were
violated. In other words, the person asserting a violation must have had
an expectation of privacy in the premises or items searched. If you are
merely present in a house when a search occurs, it is unlikely you will
be able to challenge the validity of the the search. If you were an overnight
guest, however, you would have an increased expectation of privacy and
likely would. In a vehicle, the general principle is that all occupants
are considered seized for Fourth Amendment purposes, not just the driver.

The bottom line here is obvious - if you don't carry drugs or other
contraband in your vehicle, you will have nothing to worry about in the
event you are stopped. If you do, and you are stopped, the police cannot
search your car without a warrant, unless one of the aforementioned scenarios
exist. Otherwise, any illegal items seized from your vehicle are suppressible.
In many instances, the suppression of these items will result in the termination
of prosecution. If the violation is clearly apparent, the charge may never
be filed in the first place.

As always, I hope these posts are helpful. More specific questions should
be directed to an experienced St. Petersburg / Clearwater / Tampa area
criminal defense attorney.

The information on this website is for general information purposes only.
Nothing on this site should be taken as legal advice for any individual
case or situation. This information is not intended to create, and receipt
or viewing does not constitute, an attorney-client relationship.